Ex-National Security Officials Sue to Limit Censorship of Their Books

WASHINGTON — A group of former military and intelligence officials are challenging a key system that the government uses to keep secrets: by requiring national-security workers to submit for life to censors before publishing writing related to their work.

The prepublication review system, to which millions of former officials must submit their writings, is “dysfunctional” and unjustifiably restricts free-speech and due-process rights, the plaintiffs argued in a novel constitutional lawsuit filed Tuesday in Federal District Court in Maryland.

The system is plagued by a patchwork of ambiguous policies and vague standards that puts too much discretionary power in the hands of reviewing officials, who can delay or discriminate against lower-ranking people who criticize government actions while speedily clearing favorable memoirs and other writings by retired senior officials, the lawsuit said.

“This far-reaching censorship system simply can’t be squared with the Constitution,” said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, which is jointly representing the plaintiffs with the American Civil Liberties Union.

He added: “The government has a legitimate interest in protecting bona fide national-security secrets, but this system sweeps too broadly, fails to limit the discretion of government censors and suppresses political speech that is vital to informing public debate.”

The Justice Department had no immediate comment about the lawsuit filed Tuesday.

[Read the complaint.]

The review system traces back to limits imposed on a handful of C.I.A. officials in the 1950s. It ratcheted out to cover more and more people and agencies starting in the 1970s and ballooned further under the Reagan administration.

Consenting to the reviews is now a routine part of gaining a security clearance, and the lawsuit also complained that even military employees without access to classified information face similar lifelong constraints.

While many lawsuits have been filed over the government’s handling of particular manuscripts, the new one appears to be the first to challenge the underlying system itself, unconnected to any particular disputed piece of writing, legal specialists said.

The system relies mainly on a 1980 Supreme Court ruling, Snepp v. United States, which permitted the C.I.A. to seize the proceeds from a former officer who published a book without submitting it to the agency for review. The court did not hear arguments or take briefs before issuing an unsigned ruling, which dismissed the First Amendment issues in a footnote.

The legality of the censorship system is “unsettled” in part because “the practice of prior restraint by the government has grown enormously” since that case was decided, said Jack Goldsmith, a Harvard Law School professor and former Bush administration Justice Department official who has co-written several articles critical of the process.

At the C.I.A. alone, those files showed that the agency went from reviewing about 1,000 pages a year in the early 1970s to about 150,000 in 2014, the lawsuit said, citing documents the A.C.L.U. and Knight Institute obtained under the Freedom of Information Act.

“This is a huge problem,” Mr. Goldsmith said. “The government’s system of prior restraint is wildly overbroad, undisciplined and subject to inconsistent standards. It results in lots of important information that doesn’t threaten national security not being made public. It chills people from writing things that would help people understand how the government works.”

In 2017, as part of the annual intelligence authorization law, Congress instructed the Office of the Director of National Intelligence to come up with a new system for the intelligence community that would “yield timely, reasoned, and impartial decisions that are subject to appeal.” Lawmakers set a deadline of 180 days.

But that deadline came and went, and the office still has not completed a new policy, although officials are working on it, an office spokeswoman said on Monday.

The plaintiffs asked a judge to rule that agencies cannot enforce any obligation to submit their future writings to review boards. They took no position on whether the solution is to fix the system or make it voluntary — which would leave former intelligence and military officials and contractors free to publish without prior review if they assume the risk of being prosecuted if they divulge any dangerous secrets.

The plaintiffs include Timothy H. Edgar and Richard H. Immerman, former employees of the Office of the Director of National Intelligence; Melvin A. Goodman, a former C.I.A. employee; Anuradha Bhagwati, a former Marine; and Mark Fallon, a former counterterrorism agent at the Naval Criminal Investigative Service.

Mr. Fallon, who retired in 2010, said that he had trouble getting the manuscript for his book, “Unjustifiable Means: The Inside Story of How the C.I.A., Pentagon, and U.S. Government Conspired to Torture,” cleared for publication.

His plan, he said, had been to publish it at the start of the Trump administration. But the government farmed out his book to numerous agencies, and the review process delayed publication more than eight months, to the fall of 2017, disrupting promotional plans.

When the manuscript was finally returned to him, he said, censors demanded the removal of 113 passages, many of which cited names and events that had been discussed in congressional hearings or newspaper articles. He said he reluctantly consented rather than delay further.

“There are names redacted in my book that are part of the Congressional Record,” Mr. Fallon said. “There are names that are redacted in parts of my book that weren’t redacted in other parts of my book, which shows how ludicrous the process was.”

He also maintained that books by former officials and contractors who defended the C.I.A.’s interrogation program were treated better, including George Tenet, its former director; John Rizzo, its former acting general counsel; Jose Rodriguez, the former head of its Counterterrorism Center; and psychologist James Mitchell, who helped design its program.

That critique dovetails with another recently filed lawsuit related to the prepublication censorship in 2011 of a book by Ali Soufan, a former F.B.I. counterterrorism agent who had clashed with the C.I.A. over the agency’s use of torture after the Sept. 11 attacks.

The lawsuit was brought by documentary filmmakers who say Mr. Soufan is still unable to discuss material with them that agency censors had blacked out in his manuscript, even though the C.I.A. permitted the former agency officials to discuss similar things in their own books — like details about the interrogation of Abu Zubaydah, a high-value terrorism suspect.

“The system was about controlling a narrative,” Mr. Soufan said in an interview. “I had self-censored a lot — I know what is classified — but it’s not about protecting sources and methods if I’m allowed to say ‘Abu Zubaydah talked because of waterboarding,’ but if I want to say ‘it wasn’t waterboarding, that’s not what happened,’ I can’t say it.”

Source: NYT

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